Wickenkamp v. Smith et al

Filing 58

MEMORANDUM AND ORDER - IT IS ORDERED: Plaintiff's motion for leave to file out of time (filing 54 ) is denied. Plaintiff's motion for leave to conduct discovery (filing 55 ) is denied. Plaintiff's action is dismissed without prej udice as against Defendants B & J Partners, ABC Corporation, John Doe No. 1, and John Doe No. 2. Final judgment shall be entered by separate document, whereupon the clerk of the court shall close the file for statistical purposes. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARY WICKENKAMP,
Plaintiff,
v.
CLAY SMITH, ANDREW
STROTMAN, B & J PARTNERS,
ABC CORPORATION, Its Successor
Entity, CLINE WILLIAMS WRIGHT
JOHNSON & OLDFATHER, L.L.P.,
A Nebraska Limited Liability
Partnership, JOHN DOE NO.1, and
JOHN DOE NO. 2,
Defendants.

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8:13CV262

MEMORANDUM
AND ORDER

On November 27, 2013, the court entered a memorandum and order which,
among other things: (1) denied Plaintiff’s motion for extension of time (filing 51) to
respond to Defendants’ motions; (2) granted Defendant Clay Smith’s motion to
dismiss (filing 47) and dismissed Plaintiff’s action against said defendant with
prejudice; (3) granted a motion for summary judgment filed by Defendants Andrew
Strotman and Cline Williams Wright Johnson & Oldfather, L.L.P. (filing 42), and
dismissed Plaintiff’s action against said defendants with prejudice; and (4) directed
Plaintiff to show cause, on or before December 23, 2013, why this action should not
be dismissed without prejudice as against the other Defendants, B & J Partners, ABC
Corporation, John Doe No. 1, and John Doe No. 2, for failure to effect service of
process within 120 days. Entry of final judgment was deferred.
Plaintiff’s motion for extension of time was denied because it was not filed
before the response deadline and Plaintiff did not make a showing that she “failed to
act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Regarding the motion

for summary judgment, Plaintiff also failed to make a showing by affidavit that,
“for specified reasons, [she] cannot present facts essential to justify [her] opposition”
to the motion. Fed. R. Civ. P. 56(d).
On January 1, 2014, Plaintiff filed a Rule 56(d) motion (filing 55) requesting
an unspecified amount of time to conduct discovery before being required to respond
to the motion for summary judgment. Plaintiff also filed a separate motion (filing 54)
requesting leave to file the Rule 56(d) motion out of time. Plaintiff’s motions are
accompanied by an affidavit (filing 57), the first four paragraphs of which are
substantially similar to those contained in the affidavit she filed in support of the
previous motion for extension of time (filing 52). In addition, Plaintiff states:
5. I am making a request pursuant to Federal Rule of Civil
Procedure 56(d) for an order permitting me to conduct discovery in this
case in order to respond to the Defendants[’] Motion for Summary
Judgment. Defendants have continued to engage in conduct intended to
further and which did further the conspiracy alleged in this case and that
such conduct continued as recently as 2012. This conduct includes
statements made by the Defendants and communications with third
parties intended to further the conspiracy herein. Those statements of
which I am aware include statements by Andrew Stratman that his
actions were done at the request of and the approval of Clay Smith. That
I believe this conduct provides a factual basis for the court to find that
the conspiracy and the pattern of wrongful conduct alleged in this case
continues and would provide evidence confirming the occurrence of such
conduct. That such evidence would allow me to seek leave to amend the
pleadings herein to include allegations of wrongful conduct occurring
through 2012 and to mount a viable defense to the motion for summary
judgment.
6. I cannot effectively respond to the Defendant’s [sic] Motion for
Summary Judgment without Being [sic] granted leave to conduct
discovery in this case . Discovery is necessary to obtain the evidentiary
materials needed To [sic] prove the continued conduct by Defendants.
For that reason I have requested that the court enter an order pursuant to
Federal Rule of Civil Procedure 56( d) allowing me to conduct discovery
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in this case. If allowed discovery by the court, I intend to serve written
discovery on the Defendants and subsequently take their depositions as
well as the depositions of third parties to whom the Defendants made
statements. I am in the process of making arrangements with family
members for the payment of the costs of these depositions.
(Filing 57). Plaintiff argues in a supporting brief (filing 56) that she expects to prove
a “continuing violation” to avoid a statute of limitations defense.
In effect, Plaintiff is asking the court to reconsider its prior ruling. “[M]otions
for reconsideration are ‘nothing more than Rule 60(b) motions when directed at nonfinal orders.’” Nelson v. American Home Assur. Co., 702 F.3d 1038, 1043 (8th Cir.
2012) (quoting Elder–Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006)). Plaintiff
has not demonstrated “mistake, inadvertence, surprise, or excusable neglect” or “any
other reason justifying relief” from the court’s order. See Fed.R.Civ.P. 60(b)(1), (6).
Also, Plaintiff has again failed to make a showing of “excusable neglect” under
Rule 6(b)(1)(B) to permit consideration of the Rule 56(d) motion. Even if the court
were to entertain Plaintiff’s untimely Rule 56(d) motion, the motion for summary
judgment was not granted because of a statute of limitations defense. Rather, the
court found “no factual basis” for the claims made against Defendants Andrew
Strotman and Cline Williams Wright Johnson & Oldfather, L.L.P. (filing 53 at 10).
Plaintiff’s showing is not sufficient under Rule 56(d).
Finally, Plaintiff has failed to respond to the court’s directive that she show
cause why her claims against Defendants B & J Partners, ABC Corporation, John Doe
No. 1, and John Doe No. 2 should not be dismissed without prejudice. It will be so
ordered.
Accordingly,

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IT IS ORDERED:
1.

Plaintiff’s motion for leave to file out of time (filing 54) is denied.

2.

Plaintiff’s motion for leave to conduct discovery (filing 55) is denied.

3.

Plaintiff’s action is dismissed without prejudice as against Defendants
B & J Partners, ABC Corporation, John Doe No. 1, and John Doe No. 2.

4.

Final judgment shall be entered by separate document, whereupon the
clerk of the court shall close the file for statistical purposes.

DATED this 6th day of January, 2014.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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